To the editor:
Thank you for your thorough coverage of the new DUI laws, including “What a DUI stop, arrest looks like.” Unfortunately, as a criminal defense attorney, I noticed the simulated DUI stop had some flaws. First, the “follow the pen” test, known as the Horizontal Gase Nystagmus Test, has not been used in Kansas courts as evidence of impairment for almost 20 years (see State v. Witte, 1992).
Your reporter noted that his eyes were uncomfortable because he was staring into the sun. Many people’s eyes tear when staring at the sun, causing a temporary loss of vision and making it impossible for some people to pass any balance test. Therefore, the results of the walk-and-turn test would be suspect in a real case.
The tests described in the article, as well as several other tests law enforcement uses, are called field sobriety tests. They must be performed with scientific precision and without extraneous factors to get accurate results. Too often in my practice I see these tests given incorrectly, or, in the case of the “follow the pen” test, given even though they are not admissible in court as scientific proof of impairment.
The deputy has 17 years of experience and has stopped thousands of possibly drunk drivers. His testing methods were similar to what I see on Sheriff’s Office, Lawrence Police Department and Kansas State Police videos. Unfortunately, in the case of all of these agencies, their scientific methods are at times sloppy or outdated. I hope that the training of new officers and the refresher training of current officers will eliminate tests that are no longer accepted in the courts and that the officers will be taught the common factors, such a sun/lights in the eyes, and weather and road conditions, which should invalidate their tests in the courts.